City of Seattle Hearing Examiner Decision

In the Matter of the Appeal of DOUGLAS MACDONALD from a Determination of Non-Significance issued by the Director, Seattle Department of Transportation

Hearing Examiner File: W-19-003
Associated File Numbers:
Department Reference Numbers: N/A
Date: July 16, 2019
Type: SEPA, Design Review, and Environmentally Critical Areas
Examiner: RYAN VANCIL

Introduction

The Director of Seattle Department of Transportation (Director or City) issued a Determination of Non-Significance (DNS) for a proposed ordinance that would amend the Seattle Municipal Code Title 15 concerning cafes in the public right-of-way (Ordinance). The Appellant, Douglas MacDonald (Appellant), exercised the right to appeal pursuant to Chapter 25.05 Seattle Municipal Code.

The appeal hearing was held on July 3, 2019, before the undersigned Hearing Examiner. Parties represented at the proceeding were: the Appellant, by himself pro se, and the City, by Patrick Downs attorney-at-law. The record was closed at the conclusion of the hearing.

For purposes of this decision, all section numbers refer to the Seattle Municipal Code (SMC or Code) unless otherwise indicated. After considering the evidence in the record and reviewing the site, the Examiner enters the following findings of fact, conclusions and decision on the appeal.

Findings of Fact

1. The DNS describes the proposal as:

The non-project proposal amends and adds provisions in the Seattle Municipal Code Title 15 relating to cafes in the public place as last updated in 2011 by Ordinance 123659, as well as related updates to sections of Title 15 to maintain consistency in standards across various permitted uses of the right-of-way, including vending, merchandise display, and communication cabinets. Title 15 amendments include eliminating the setback from residential zoning for cafes and clarifying standards and SDOT authority related to permitting cafes in the curb space of the roadway, commonly known as streateries. The Directors Rule will formalize the fence-free design option and establish a process to allow for deviations from certain standards when appropriate given local conditions. The proposed amendments will require adoption by the City Council. Future caf activities will require permits and review as provided for in the Sidewalk and Street Use Code.

2. The Director determined that no probable significant adverse environmental impacts were likely to occur as a result of the proposed legislation, and that preparation of an environmental impact statement (EIS) was not required. The Director issued a DNS on August 4, 2002.

3. The Appellant filed an appeal of the Directors decision on April 26, 2019.

4. The Appellant alleged in his Notice of Appeal that the DNS failed to adequately consider cumulative impacts, stating:

Cumulative impacts that should have been considered in the SEPA Review include:

[a] Substantial increases and recent and expected increases in the volume of walking in the City, driven by the growth of the City and the City's transportation policies, especially including the growth of walking "mode share" measured in various ways in the Downtown Area.

[b] Growing transit ridership in and to the City intensifying pedestrian activity not only immediately in the vicinity of bus and light rail stops, but also on all sidewalks within the walksheds for transit access. Transit restructuring (e.g., Metro buses out of Downtown Transit Tunnel) has also created impacts to pedestrian transit access use and patterns on sidewalks.

[c] Compliance shortfalls with ADA sidewalk accessibility responsibilities, including inventory and additional compliance actions have and will continue to have on sidewalks, as further identified in SDOT's ADA Transition Plan.

[d] Retreat from undertakings offered to voters in the proposal for the nine-year Move Seattle transportation levy in 2015. These retreats have created impacts falling on sidewalk repair and construction. Also, reductions and delays to bicycleinfrastructure improvements offered to voters in the levy proposal further exacerbating bicycle sidewalk riding.

[e] Years of underfunding for sidewalk maintenance and repair leading to widespread defects in sidewalk conditions as documented in SOOT Asset Management Status and Condition Report (2015) and the SOOT Sidewalk Condition Assessment Project (2017).

[f] Failure in the face of Seattle's construction boom to maintain sidewalk accessibility through inadequate implementation, inspection and enforcement of Director's Rule 10-2015.

[g] SDOT's permits for "free-floating bike share" program promoting sidewalk parking and riding of thousands of private vendor-supplied shared use bicycles, including riding of motorized "electric assist" bicycles, on sidewalks in the largest such program in the country.

[h] Foreseeable forthcoming adoption of further shared use "micro mobility" personal transportation programming likely involving additional vehicle parking and riding impacts on sidewalks from e scooters and other micro-mobility devices.

[i] Regulatory authorization for transportation network companies (e.g., Uber, Lyft) operations in Seattle with impacts on pedestrian/vehicle connectivity demands on curb zone and sidewalks driven by ridership growth; SOOT inaction and delay on curb zone regulation affecting sidewalk uses.

[j] Expansion of curb zone loading location pressures and requirements for private shuttle services (e.g., Microsoft Connector) with impacts of use of adjacent sidewalk locations

[k] SOOT promotion (piloting) of motorized (electric-assist cargo tricycles) package delivery services - freight mobility-- on sidewalks. Prospect of drone package delivery vehicles in sidewalk operation.

[l] City of Seattle responsive or unresponsive policies creating or contributing to conditions on sidewalks (impacts) from the large numbers of people living unsheltered in Seattle.

[m] Failure of SDOT's Vision Zero program to produce reductions in the number of fatal and serious injury collisions involving pedestrians.

[n] Inadequate resources for inspection and enforcement of sidewalk protective provisions in existing sidewalk ordinances ( e.g., vehicle parking on sidewalks) and sidewalk use programs (e.g., sidewalk cafes and portable signs) that impact accessibility (including SPD Parking Enforcement Officer and SOOT resources); likely continuing negative impacts on walkability/pedestrian mobility from already permitted locations for sidewalk seating that are not expected to be conformed to requirements on freshly-issued permits under proposed programs.

Matters of fact and matters of mixed law and fact will be presented to the Hearing Examiner to demonstrate the interrelationship and cumulation of impacts arising from the forgoing and the resulting impacts on pedestrians' mobility uses of the sidewalks as presented by the proposal.

5. Issues c, e, f, l, and m were dismissed at the outset of the hearing in response to a City motion.

6. The Appellant requested that the DNS be remanded for a review of all impacts including cumulative impacts on transportation elements.

7. At the hearing the Appellant presented testimony and documents describing current City sidewalk/right-of-way conditions and argued how these conditions relate to various City policies and practices. These conditions, Appellant argued in closing, would be exacerbated by the proposed legislation, and that the cumulative impact of the legislation added to these existing conditions was not adequately analyzed in the DNS review.

8. Through City staff witnesses, and exhibits, the Appellant established that Seattle sidewalks are used not only by pedestrians, but also by many other users including but not limited to bicyclists, and an ever increasing array of emerging technology personal transportation devices (e.g. e-bicycles, e-scooters, hoverboards, uni-wheels, etc.). Appellant demonstrated use of sidewalk areas by parked free-floating bike share bicycles. Appellant introduced evidence indicating that the City plans to increase pedestrian use at certain locations (See Ex. 7), and that citywide pedestrian counts are increasing. See Ex. 8. Appellant also discussed at hearing increases in ridership for Uber and Lyft service, and for public transit, and argued that these would increase pedestrian traffic on sidewalks, but did not introduce any evidence quantifying these increases relative to sidewalk use. Finally, the Appellant introduced a set of photos illustrating congested areas of sidewalks, and existing sidewalk cafes.

9. City staff testified about the nature of the proposal, and indicated that a cumulative impacts analysis had been included with the DNS.

10. SMC 25.05.752 defines Impacts as the effects or consequences of actions. Environmental impacts are effects upon the elements of the environment listed in Section 25.05.444.

11. The impacts to be considered in environmental review are direct, indirect and cumulative impacts. SMC 25.05.060 D.

12. A proposals effects include direct and indirect impacts caused by a proposal. Impacts include those effects resulting from growth cause by a proposal . . . . SMC 25.05.060 D. (Emphasis added.)

13. Probable is defined in SMC 25.05.782 as likely or reasonably likely to occur . . .

14. SMC 25.05.794 defines significant as a reasonable likelihood of more than a moderate adverse impact on environmental quality. . . . Significance involves context and intensity . . . The context may vary with the physical setting. Intensity depends on the magnitude and duration of an impact . . . . Section 25.05.330 specifies a process, including criteria and procedures, for determining whether a proposal is likely to have a significant adverse environmental impact.

15. SMC 25.05.330 directs that, in making the threshold determination, the responsible official shall determine if the proposal is likely to have a probable significant adverse environmental impact . . . . If the responsible official reasonably believes that a proposal may have such an impact, an environmental impact statement is required. SMC 25.05.360.

16. The Citys SEPA Overview Policy states, in part, that:

[m]any environmental concerns have been incorporated in the Citys codes and development regulations. Where City regulations have been adopted to address an environmental impact, it shall be presumed that such regulations are adequate to achieve sufficient mitigation subject to the limitations set forth in subparagraphs D1 through D7 below.

17. SMC 25.05.665 D. Subparagraphs D.1 through D.7 cover situations where existing regulations may be inadequate or unavailable to assure mitigation of adverse impacts and thus, SEPA-based mitigation is appropriate.

18. The SEPA Cumulative Effects Policy, SMC 25.05.670, states that:

A. Policy Background.

1. A project or action which by itself does not create undue impacts on the environment may create undue impacts when combined with the cumulative effects of prior or simultaneous developments;

. . . .

B. Policies.

1. The analysis of cumulative effects shall include a reasonable assessment of:

a. The present and planned capacity of such public facilities as sewers, storm drains, solid waste disposal, parks, schools, streets, utilities, and parking areas to serve the area affected by the proposal;

b. The present and planned public services such as transit, health, police and fire protection and social services to serve the area affected by the proposal;

c. The capacity of natural systemssuch as air, water, light, and landto absorb the direct and reasonably anticipated indirect impacts of the proposal; and

d. The demand upon facilities, services and natural systems of present, simultaneous and known future development in the area of the project or action.

Conclusions

1. The Hearing Examiner has jurisdiction over this appeal pursuant to SMC 25.05.680.B, which also requires that the Hearing Examiner give substantial weight to the Directors determination.

2. The party appealing the Directors determination has the burden of proving that it is "clearly erroneous". Brown v. Tacoma, 30 Wn. App. 762, 637 P.2d 1005 (1981). Under this standard of review, the decision of the Director may be reversed onlyif the Hearing Examiner is left with the definite and firm conviction that a mistake has been committed. Cougar Mt. Assoc. v. King County, 111 Wn. 2d 742, 747, 765 P.2d 264 (1988).

3. Neither the SEPA statute nor the SEPA rules identify a baseline for environmental analysis. However, environmental impact analysis in relation to existing conditions is the norm. See, e.g., East County Reclamation Co. v. Bjornsen, 125 Wn. App. 432, 435, 105 P.3d 94 (2005); Floating Homes Assoc. v. Washington Dept. of Fish and Wildlife, 115 Wn. App. 780, 785, 64 P.3d 29 (2003); Thornton Creek Legal Defense Fund v. City of Seattle, 113 Wn. App. 34, 59, 52 P.3d 522 (2002); Richland Homeowners Preservation Assn. v. Young, 18 Wn. App. 405, 411, 568 P.2d 818 (1977).

4. Nothing in SEPA requires that an agency's environmental review be completely contained within the Checklist and DNS. A DNS is simply a variation of a prescribed form and normally does not include an analysis of the proposal. See, e.g. SMC 25.05.970. An agency is required to review the Checklist, SMC 25.05.330 A.1, but it may also require more information of the applicant, conduct further study and consult with other agencies about the proposal's potential impacts. SMC 25.05.335. It is expected that the agency will utilize its own knowledge and expertise in analyzing the proposal. As noted above, the question on review is whether the agency actually considered environmental factors. See Hayden v. City of Port Townsend, 93 Wn. 2d 870, 881, 613 P.2d 1164 (1980), overruled on other grounds, Save a Neighborhood Environment (SANE) v. City of Seattle, 101 Wn.2d 280, 286, 676 P.2d 1006 (1984). Therefore, the Examiner will review the appeal issues as if they were framed in terms of SDOTs actual consideration of the alleged project impacts.

5. SEPA requires actual consideration of environmental factors before a DNS can be issued. Norway Hill Preservation and Protection Assn. v. King County, 87 Wn.2d 267, 275, 552 P.2d 674 (1976). The record must demonstrate that environmental factors were considered in a manner sufficient to amount to prima facie compliance with the procedural requirements of SEPA. Id. at 276 (citation omitted). In this case, City staff testified about the nature of the proposal, and indicated that a cumulative impacts analysis was included with the DNS. Of greater evidentiary value however, was Appellants own case, wherein all of the witness were City staff that were involved in some way with the DNS. Appellant relied on the testimony of these City representatives to establish a record concerning baseline conditions of City rights-of-ways/sidewalks, and factual support for all of the various elements of sidewalk use that Appellant alleges were ignored in the Citys cumulative impact analysis. This testimony clearly demonstrates that the City staff responsible for the environmental analysis were aware of the issues and baseline conditions alleged by Appellant. Appellant did not demonstrate that the City staff did not utilize its own knowledge and expertise in analyzing the proposal.

6. Appellant complains generally that the proposals cumulative impacts were not adequately analyzed, but Appellant failed to cite any facts or evidence in the record demonstrating the probability that the proposal will cause any significant environmental impacts warranting an EIS. It is not sufficient for Appellant to simply allege inadequacies with the DNS environmental review. Instead, to prevail on the appeal of a DNS, Appellant must demonstrate that there are probable significant negative impacts associated with the proposal. The purpose of the environmental review is not simply to look at all imaginable impacts that may be associated with the proposal, but instead is wholly directed at identifying any probable significant impacts associated with the proposal. In the absence of evidence showing any probable significant impacts associated with the proposal, no additional SEPA review is required. In this case, the Appellant simply raised a series of issues and concerns with the proposal without introducing any evidence that the proposal would have any probable significant impacts. Thus, the Appellant failed to satisfy a fundamental element required to prevail in his appeal requesting a remand of the DNS.

7. There is no evidence in the record that the proposed legislation would have a significant adverse impact.

8. The Appellant has not met his burden of proving that the Directors SEPA threshold determination is clearly erroneous.

Decision

The Directors decision to issue a Determination of Nonsignificance for the proposed ordinance is not clearly erroneous and is AFFIRMED.

Entered this ___ day of July, 2019.

__________________________________

Ryan Vancil, Hearing Examiner

Office of Hearing Examiner

Concerning Further Review

NOTE: It is the responsibility of the person seeking to appeal a Hearing Examiner decision to consult Code sections and other appropriate sources, to determine applicable rights and responsibilities.

The decision of the Hearing Examiner in this case is the final SEPA decision for the City of Seattle. Judicial review under SEPA shall be of the decision on the underlying governmental action together with its accompanying environmental determination.Consult applicable local and state law, including SMC Chapter 25.05 and RCW 43.21C.076, for further information about the appeal process.

If a transcript of the hearing is required by superior court, the person seeking review must arrange for and initially bear the cost of preparing a verbatim transcript of the hearing. Instructions for preparation of the transcript are available from the Office of Hearing Examiner, Room 1320, 618 Second Avenue, Seattle, Washington 98104, (206) 684-0521.